ATypI's (old) stance on cloning vs. yours

The proposed moral code of ATypI is nothing new at all (in fact, it was deprecated in 2004 without replacement), but I was wondering what you all thought if it, as it applies to your own designs and to others (and some distinctions not really discussed in it which might or might not be important to you).

Here's the relevant passage:

(2) Members consider it to be incompatible with their professional ethics to make areproduction of another member’s typeface, whether identical or slightly modified,irrespective of the medium, technique, form or size used, unless the owner of thetypeface has given his written agreement on terms granting a license.(3) If, after a minimum period of fifteen years of the typeface first being offered for sale,the owner refuses to grant a license, members may copy the typeface provided that theunlicensed copy is sold under a name which is in no way connected with the originalname. The manufacturer of a copy made under these circumstances must notcontravene trade mark rights, industrial property rights, copyrights, laws againstunfair competition etc., or private agreements.

So, the reading I have is that by this rule, after a typeface is fifteen years old, it's OK to copy it between ATypI members (provided that that's kosher by the design patent or copyright laws, as they may or may not apply in your jurisdiction). Of course, the fifteen-year rule is a mere industry agreement, since the law in many cases provides no protection (and this term is just set by the Code morale).

I think type cloning isn't altogether illegitimate; for example, it has been a boon to the open-source community that something such as the URW35 exists. I do recognize obvious reasons why somebody would be against cloning in some circumstances (contemporary and unique fonts, for example), though.

To you, are there distinctions not being drawn here which you think are valuable in your idea of design community ethics? For example:

Does the amount of existing clones matter? Surely, nobody would mind another clone of Times at this point (except for the fact that it would be quite boring). Sabon has also been cloned a number of times, but its clones are less prevalent. Is a Sabon clone as acceptable as a Times clone? And is the person who creates the first clone doing something more unethical, in your view, than the person who creates a clone after there are already a number on the market?

Does it matter if the original typeface designer is alive? Robert Slimbach's Minion is over fifteen years old. It had a design patent, but it has expired. In the US, at least, I could draw my own version of Minion, and as long as I didn't use any of the original outlines, I could release that. But is that OK to do while Slimbach is still around? ATypI seems to say yes.

Does it matter what you're doing with the clone? Is it better to release a clone under the OFL than it is to try to profit off of somebody else's design?

The reason I ask is because I'm not really sure where people stand on this issue, and where designers particularly think the lines should be drawn between other designers, as opposed to where corporate entities think the lines should be drawn (as reflected probably in the ATypI proposal).

You're right, it is the old text, which they never replaced (removed from the current statues in '04). But since then I've not seen a document reflecting an ethical consensus in the type world among what the rules are or should be.

And I think the question is probably most pertinent regarding 20th century designs. Nobody owns Garamond, obviously, and I'm perfectly free to release my own versions. But does anybody own the foundry fonts which did not originate digitally? There are plenty of fonts from the 1920s, some of which were never digitized while others were, for example. And Monotype sells, for example, many fonts which their company originated in the 1920s, but I'm somewhat more skeptical of the idea of exclusive rights to make a font based on a 100-year-old typeface versus based on one from the 1990s like Minion. So how do you determine where to draw the lines?

And I do think the Sabon example is apt — it was drawn in the 1960s, so it is relatively new. It was originally released by Monotype, Linotype and Stempel (jointly). It would later be digitized by Linotype as Sabon, but almost identical (visually) digital cuts were released by Bitstream (as "Classical Garamond") and SoftMaker/Fontsite (as "Savoy"). So is the precedent set, then? I would think that if a number of font foundries have already sold the same design for decades (in varying digitizations), it's much more OK to make one's own take than in the case of a typeface which originated digitally and which has been sold exclusively (like Minion).

ATypI, in case that its mission happens to be representing type designers, better explicitly revoke this outdated nonsense which actually harms type designers while it favors copycats.

ATypI DID explicitly revoke it, fifteen years ago. I remember it well as it was the same year I joined the ATypI board. (No causal relationship, there. That change was already in the works.)

A bit of context is called for, here. When the Code Morale was created, in the world of metal and phototypesetting, it was a major strengthening of existing practices, when immediate copying/imitation of typefaces was the norm.

But times changed, and despite not much attention/weight being given to it, the Code Morale became a relic of a different era—at a time when prevailing practices mostly split between being at least as respectful than the Code Morale, and barely operating within its bounds.

Speaking only for myself, I:

don’t think that other people’s copying of a design is a strong argument for the legitimacy of doing so. (Although, depending on who is doing the copying, it may be an argument for the social acceptability of that behavior.)

like the idea of respecting the wishes of living type designers regarding their designs.

see a very broad continuum of possibilities, for both originality and legitimacy. These are complex questions, and while my responses to many cases are simple, with some ... not so much.

see “something being a boon to the open source community” as an argument that could be used to validate making an open source version of any commercial typeface that anyone cares about. Of course, instead of “the open source community” the argument should be about the broader value to the world.

ATypI, in case that its mission happens to be representing type designers, better explicitly revoke this outdated nonsense which actually harms type designers while it favors copycats.

ATypI DID explicitly revoke it, fifteen years ago. I remember it well as it was the same year I joined the ATypI board. (No causal relationship, there. That change was already in the works.)

Speaking only for myself, I:

don’t think that other people’s copying of a design is a strong argument for the legitimacy of doing so. (Although, depending on who is doing the copying, it may be an argument for the social acceptability of that behavior.)

see “something being a boon to the open source community” as an argument that could be used to validate making an open source version of any commercial typeface that anyone cares about. Of course, instead of “the open source community” the argument should be about the broader value to the world.

Yes, you're right that it was revoked. I suppose we still don't have a true replacement, which is why I was wondering what the attitudes was.

The comment on social acceptability is totally on point: and since this whole idea of acceptability is a social one, I was looking at what (apparently) is accepted by major players as a method of seeing where everyone de facto stands.

Speaking personally, I would like to respect the wishes of a living designer when it comes to cloning. Of course taking loose inspiration is always OK.

And you're right about the comment on the open source community vs. value to the world. Although I must admit I am a bit biased as a hardcore open source advocate myself, I do think that these are in effect one and the same.

***

My personal view (though I'm open to being convinced otherwise):

1. Copying old designs is just fine. Your take on Garamond or Century or Times is fully welcome. Though perhaps a new spin is more interesting.

2. It's fine to make your Garamond metric-compatible with a particular other Garamond font, since metrics compatible fonts are fine to make generally anyway. So for ancient fonts, it's fine to make a drop-in replacement (as long as you're not copying the curves from someone else).

3. It's not really proper to copy the design of a living designer without their permission.

4. It's OK, more or less, to copy typefaces from before the digital era. This applies especially if the typeface has never been digitized, or if your take is new and original in some way.

5. Typefaces being sold in some version or another by multiple major foundries (not licensed to each other or anything) for decades in distinct versions don't really have a single owner to steal them from --- they are more or less common property.

6. I do believe that an open source font benefits everybody. URW and STIX had versions of Palatino and Times which were open source. I took it upon myself to extend these fonts slightly. I don't think there's anything wrong with that, but I also was not the person who originally cloned Palatino or Times. (actually, the open source Palatino, Palladio, involved Hermann Zapf personally, and the foundry released it as open source. Since the designer was involved, it's hardly a clone).

I was instrumental in getting the old 'Code Morale' removed from the ATypI statutes in 2004. I worked closely with Cynthia Batty on this, and we went through the statutes very carefully and identified problematic sections, and I introduced the proposed changes at the AGM in Prague that year, where they were voted on and adopted. There were two main reasons for revoking the old Code Morale:

1. As Karsten and Thomas note, the terms of that section of the statutes reflected the make up of the organisation of an earlier era. At that time, the development and marketing of new typefaces was linked to specific typesetting machines and systems, and the real money in the business was in the sale of these machines. The typefaces available for a particular machine contributed to the marketability of that machine, so there was a strong impulse copy competitors' popular typefaces and to make them available on one's own machine and system. The fifteen year rule was intended to put some limit on this copying, recognising that the varieties of legal protection for typeface design internationally made it difficult to combat copying via the courts. In practice, the Code Morale had limited success in its intended aim, and there remained instances in which companies that were members of the association copied typefaces before the 15 years were up. It should also be noted that while the corporate members of the association voluntarily submitted themselves to this code — at least nominally —, as a pragmatic effort, it was never popular among type designers. As the nature of typesetting technology, the type business, and ATypI's membership model all changed in the wake of the desktop publishing revolution, the Code Morale was recognised as an anachronism, and one that didn't sit well with an association increasingly made up of individual type designer and small foundries.

2. ATypI began life as an industrial cartel, and the Code Morale reflect this. The removal of that section of the statutes was necessary to clearing away the cartel legacy and establishing the association as a professional and academic organisation with a non-profit status and which companies from jurisdictions with strong anti-trust laws regarding cartels could freely join. Adobe's legal department was particularly cautious in this regard, and I recall that Cynthia and I ran our proposed changes past Adobe's lawyers to ensure that we had taken sufficient steps to make the association clearly no longer a cartel. If I recall correctly, Thomas' election to the ATypI board might only have been possible under those conditions, as he was an Adobe employee at the time.

I have found the version of ATypI's statutes and code moral of 1957 (signed by the secretary Anthony G. Edema van der Tuuk and president Charles Peignot), which was reprinted in three languages (French, English, German), in 1977 (designed by Fernand Baudin, who typeset it in Garamond, and printed by Heinz Knauer). The document was distributed during the 20th anniversary of ATypI at Lausanne on 29 September 1977.

The document (English version in b/w only), which is different from your paragraphs, is attached here to my comment.

Hope this helps,

many regards,

Jo

ps high-res colour scan of the entire document can be send upon request

Most of this discussion does not reflect the context in which ATypI’s Code Morale was written. Remember that in those days most manufacturers developed proprietary typesetting systems. The fonts they produced could only be used on their machines. Except for some of the 2-Inch film fonts these were closed systems. The idea of allowing copying after 15 years of exclusivity and the manufacturer (nowadays what we call a foundry) refusing to license the typeface design to other manufacturers was that it would practically force manufacturers to license ‘their’ typefaces to other manufacturers. The idea of allowing members to copy was clearly a step against the policy of Berthold and Linotype of not licensing typefaces to other manufacturers such as Autologic, Compugraphic, Hell, Purup, Scangraphic and URW. Note that most of them, if not all, were company members of ATypI. I remember that the Code Morale was intensively discussed at ATypI’s General Assembly in Kiel, Germany 1985 and discussions in the Committee of Designers. The idea of pushing the Code Morale was mainly driven by manufacturers such as ITC, Monotype, Haas and Stempel and of course by practically all typeface designers(!) who thought that they would benefit from such a licence policy. One of these designers was Hermann Zapf, a long standing member of ATypI. He left ATypI when Monotype ‘reverse-engineered’ Book Roman, an ugly clone of Zapf’s typeface Palatino, a typeface he once designed for Stempel. That particular version of Palatino was part of the LaserWriter 35 and had been produced by Linotype/Adobe. Zapf felt betrayed, for him the Code Morale which he had been advocating, was not anymore worth the paper it had once been written on. So much for LaserWriter 35 clones being great …

The good thing about the Code Morale is that it helped establishing the Designer as the Author of his or her Work. Very important when it comes to copyright. Today, when it comes to the legal situation as ruled by laws, designers have very poor copyright protection. It all has become a matter of license agreements and distribution agreements. The bigger the company is one deals with as a designer, the poorer the standard versions of these contracts are. I.e. not on favour of designers.

This isn't just an abstract battle between typesetting vendors, either. It percolated right down to the designer level. If a designer was getting typesetting from vendor X, that restricted which fonts they could use, and hence which fonts you could specify as a designer, as their customer.

@Dave Crossland I am not amused by your comment. Let alone lol. I rather think of a Code Morale which could be something like a ‘Declaration of Typeface Designer’s Rights’. It could state that designers should not to copy each others designs. It could also state that foundries and distributors should take care that they do not publish designs which are copies or obviously derived from original designs. I do not think that this has anything to do with the formation of a cartel.

3. It's not really proper to copy the design of a living designer without their permission.

That may be how you would like think that things are, but there are many cases they are different. A few years ago, a fairly large group of designers signed a license agreement in which the foundry that publishes their design grants to pay license fees to their heirs for several decades. I was amongst that group of designers. I think that neither the foundry, nor my heirs will be pleased when they see someone copying my design after my death.

3. It's not really proper to copy the design of a living designer without their permission.

That may be how you would like think that things are, but there are many cases they are different. A few years ago, a fairly large group of designers signed a license agreement in which the foundry that publishes their design grants to pay license fees to their heirs for several decades. I was amongst that group of designers. I think that neither the foundry, nor my heirs will be pleased when they see someone copying my design after my death.

If it is not OK to copy from a living designer without permission this doesn't imply it's necessarily OK to copy from a dead designer either. But any disagreement is why there should be some consensus building.

I think type cloning isn't altogether illegitimate; for example, it has been a boon to the open-source community that something such as the URW35 exists. I do recognize obvious reasons why somebody would be against cloning in some circumstances (contemporary and unique fonts, for example), though.

You are arguing against your own ‘Code Morale’ … The first 35 PostScript fonts were first shipped with the Apple LaserWriter II. Here they are

These fonts were cloned by many foundries, URW, Bitstream and Monotype were amongst them. By the time these 35 PostScript Clones were released (around 1990), Tom Carnase, co-designer of ITC Avant Garde (released in 1970), was still alive, the same goes for Ed Benguiat, designer of ITC Bookman (released in 1975) and Hermann Zapf, designer of Palatino (released in 1950), ITC Zapf Chancery (released in 1979) and ITC Zapf Dingbats (released 1977). Which leaves us with the fact that 14 of these typefaces were designed by designers which were not dead yet. Also, 6 of these typefaces were not even 15 years old. I am not aware of any of the companies which cloned the 35 PostScript fonts even bothered to ask the designers before their initial release, and that includes URW ;–)

I think type cloning isn't altogether illegitimate; for example, it has been a boon to the open-source community that something such as the URW35 exists. I do recognize obvious reasons why somebody would be against cloning in some circumstances (contemporary and unique fonts, for example), though.

You are arguing against your own ‘Code Morale’ … The first 35 PostScript fonts are

These fonts were cloned by many foundries, URW, Bitstream and Monotype were amongst them. By the time these 35 PostScript Clones were released (around 1990), Tom Carnase, co-designer of ITC Avant Garde (released in 1970), was still alive, the same goes for Ed Benguiat, designer of ITC Bookman (released in 1975) and Hermann Zapf, designer of Palatino (released in 1950) and of ITC Zapf Dingbats (released 1977). Which leaves us with the fact that these fonts were designed by designers which were not dead yet. Also, some of these fonts were not even 15 years old.

You're right --- I know this, and I was just proposing some principles which type designers today might me more amenable to. Because I don't think most people would think it's OK for me to copy Slimbach's Minion now, for example. But I also find it a bit hypocritical that the major type foundries are still selling clones of these fonts (and others such as Sabon) if it is the belief of many that I cannot go out and clone these fonts myself. And that's why Dave is talking about cartel formation, and he's not entirely wrong.

Recently, I talked to a colleague about the idea of establishing a new Code Morale. He sent me the animation I posted here. Have some patience when watching it. It starts rather slow. I think it convincingly shows that it is worthwhile to the community of typeface designers to put this on the agenda.

But I also find it a bit hypocritical […] if it is the belief of many that I cannot go out and clone these fonts myself.

The question then is: why would you want to do that? Probably not to add originality, creativity, sophistication, and innovation to our beautiful métier. If I leave my front door open, some may consider that an invitation for burglary. Others could consider it unfair that they were not able to make use of the opportunity I offered. Consequently, we may disagree about what is morally acceptable. When it comes to my humbleopinion, I would simply like to refer here to Leviticus 19:11.

Hi Karsten, long time no write ;-) Yes, I checked Spectral and I think you are right. Probably the reason why Dave Crossland chimed in and kept referring to ATypI’s former Code Morale reflecting a cartel, although I clearly proposed something different in this thread. Maybe he prefers to overhear my proposal?

And I do think the Sabon example is apt — it was drawn in the 1960s, so it is relatively new. It was originally released by Monotype, Linotype and Stempel (jointly). It would later be digitized by Linotype as Sabon, but almost identical (visually) digital cuts were released by Bitstream (as "Classical Garamond") and SoftMaker/Fontsite (as "Savoy"). So is the precedent set, then? I would think that if a number of font foundries have already sold the same design for decades (in varying digitizations), it's much more OK to make one's own take …

If you want to digitize types once cut by Garamond, I think there is no one out here that would complain for reasons other than this being superfluous as this has been done often enough. What may be considered troublesome is when you do this by using some one else’s work without asking permission to do so.

The example of Sabon you are using here does not apply, I think. When Bitstream was founded, they somehow magically released hundreds of fonts which quite exactly matched Stempel/Linotype’s digitisations. Some of these digitisations had been done by URW, others had been licensed to URW to sublicense these with their Signus system. A few years later SoftMaker released thousands of fonts which somehow magically appeared to be quite matching URW data. No matter how Bitstream and SoftMaker managed to do this, one thing is for sure. They never asked Stempel or Linotype for permission, let alone to license these properly.

By using the Sabon example you mainly argue in the sense that if two others already have stolen something from someone else, you are entitled to do the same. Not the best reasoning I think.

My advice: If you want to design a typeface by making advantage of someone else’s work, ask for permission from the designer, the foundry or its legal successor. Or look for a design that is available under an Open Source License which suits your needs. There are hundreds of typefaces which are Open Source. There are also hundreds of typefaces for which there is no designer, foundry or legal successor you can ask anymore. Everything else may be troublesome.

And I do think the Sabon example is apt — it was drawn in the 1960s, so it is relatively new. It was originally released by Monotype, Linotype and Stempel (jointly). It would later be digitized by Linotype as Sabon, but almost identical (visually) digital cuts were released by Bitstream (as "Classical Garamond") and SoftMaker/Fontsite (as "Savoy"). So is the precedent set, then? I would think that if a number of font foundries have already sold the same design for decades (in varying digitizations), it's much more OK to make one's own take …

If you want to digitize types once cut by Garamond, I think there is no one out here that would complain for reasons other than this being superfluous as this has been done often enough. What may be considered troublesome is when you do this by using some one else’s work without asking permission to do so.

The example of Sabon you are using here does not apply, I think. When Bitstream was founded, they somehow magically released hundreds of fonts which quite exactly matched Stempel/Linotype’s digitisations. Some of these digitisations had been done by URW, others had been licensed to URW to sublicense these with their Signus system. A few years later SoftMaker released thousands of fonts which somehow magically appeared to be quite matching URW data. No matter how Bitstream and SoftMaker managed to do this, one thing is for sure. They never asked Stempel or Linotype.

By using the Sabon example you mainly argue in the sense that if two others already have stolen something from someone else, you are entitled to do the same.

Well, yes, of course nobody has an issue with digitizing Garamond's types.

But you are being rather presumptuous, as you as assuming from the outset that the Bitstream font releases are wrong. In a legal sense, obviously, they are not. But in an ethical sense, sure, yes, you may find them wrong. But the fact that you do doesn't indicate that that is the consensus — and I'm not out here claiming that I know what the consensus is, but I will say that Matthew Carter and Bitstream remain quite respected figures in the font world — clearly many people do not believe that they should be considered personae non gratae. (Although some do. See the quotes at http://luc.devroye.org/fonts-27538.html)

As for Sabon, the reason the example is given is because it is an edge case where people disagree. Typefaces cannot be "stolen" in the sense in which an object can be stolen, of course. What they can be is copied, which is different. Copying the font data is obviously unacceptable. But Sabon is a twentieth-century metal cut, at least originally. And I don't think there's anything wrong with copying a metal cut and digitizing it.

But here's an example, maybe a bit more intriguing for you. Monotype had cut Bembo in metal for many years for use with their machines. When Monotype first produced a digital Bembo, that version was much spindlier than the one in metal. Edward Tufte, not impressed with the spindliness, commissioned his own version of Bembo, which was a digitization of metal Monotype Bembo, which was heartier than the spindly Bembo released by Monotype — this family was called ET Bembo/ET Book. A few years later, Monotype released their own font "Bembo Book", which was designed to be a bit closer to the actual book cut. Was it wrong for Tufte to digitize these types? Surely it would have been OK if he had gone back to the renaissance sources, but that was not his aim — he was reviving a twentieth century metal cut. Did he do something wrong? No, I don't think so at all.

In the case of Sabon, you write that copying font data is unacceptable. In the case of Bitstream that is probably exactly what has happened. Virtually no one could digitize such a large number of typefaces in such high quality and thereby perfectly matching the sources in such a short time. Not in those days, not even Matthew Carter, no matter how nice he is. And he is. I can tell you.

In the case of Palladio you halfway missed a point I think. Yes, Zapf approved of Palladio, but he never approved of URWs PostScript clone of Palatino, no matter under what name URW ever sold these. Compare those two typefaces, they are not the same. Yes, Hermann Zapf is not with is anymore, but his wife, Gudrun Zapf von Hesse is still alive. I think that she will not be amused when she hears that you did a copy of her late husbands typeface Palatino.

Why bother about Bembo? It is a poor rendering of the original typeface anyway. No matter which version you take. Too much technical restrictions. 18 unit system, keyboard arrangement, poor insight in typeface design of the draughtsmen that did the drawings … Why not start from original prints? I think that that is much more interesting, and probably more rewarding too.

But let‘s be honest, I think that we will not agree on this. I do have this dumb feeling that you are simply looking for excuses that are partially quite lame, at least in my opinion. And I am trying to explain that designers should respect each others work and figure what designers can do from a moral point of view instead of looking for what they can do.

If you want to learn how to create original typeface designs, I would like to advise you to sign up for something like Type Paris. Jean François Porchez is doing an excellent job there. Good luck!

It may be helpful to identify the legal concern that some parties, notably Adobe, had regarding the old Code Morale and antitrust legislation. It isn't the existence of an ethical behaviour policy per se that was a problem, but specifically the pledge aspect of the ATypI statute, which involved member companies collectively agreeing how they would compete and individually pledging to respect this agreement. That constitutes a cartel.

At the time, in the early 2000s, some of us were looking at the possibility of using ATypI as an organisational host for collaboration on technical aspects of font formats and layout. Ironically, we'd been approached by someone at Adobe about the possibility of ATypI taking over management of the OpenType format specification, but then it was Adobe's in-house legal department that put a brake on things and said they couldn't participate in anything along those lines because ATypI's statutes made it a cartel. That was a big part of the impetus to revise the statutes in 2004, and part of that process was getting the draft revisions reviewed by one of Adobe's lawyers. [As it turned out, the OT format was handed to ISO as a parallel standard (Open Font Format), text and layout processing and display has gravitated to Unicode, and ATypI hasn't really done much in terms of technology.]

Apart from that specific history, my own take — since the late 1990s — has been that ATypI simply doesn't have any teeth, so it doesn't make sense to give it a mission that involves biting things.